The Queen v McColl [1999] NZCA 131; (1999) 17 CRNZ 136 (29 July 1999)

Last Updated: 1 December 2011

IN THE COURT OF APPEAL OF NEW ZEALAND

CA135/99

THE QUEEN

V

CRAIG EDWARD McCOLL

Hearing:	30 June 1999
Coram:	Keith J Tipping J Gallen J
Appearances:	C P Brosnahan for Appellant J C Pike for Crown
Judgment:	29 July 1999

JUDGMENT OF THE COURT DELIVERED BY TIPPING J

Introduction

[1] Mr McColl faces two charges of cultivating cannabis and one charge of possession of cannabis for supply. He seeks leave to appeal against a pre-trial decision of the District Court at New Plymouth, which ruled as admissible, evidence obtained during a search of his property pursuant to a warrant.
[2] On 23 September 1997, Detective Blair Burnett received information from an informant to the effect that a named person had purchased cannabis from one Craig McColl of Hurleyville. This transaction had taken place three weeks earlier. Detective Burnett gave evidence that the informant was very reliable and had given a great deal of information in the past that had led to drug-related arrests and convictions. It would appear, however, as Detective Burnett conceded, that the information about the address of the supplier and the colour of the supplier’s car was incorrect. Detective Burnett ascertained the correct address for Mr McColl and on 21 November 1997 he applied for a search warrant. The address appearing on the warrant was “Tahere Road”, but, in fact, the correct address was “Tarere Road”. This was simply an innocent spelling error. The warrant was executed the same day and the appellant’s sister, who was present at the property, was provided with a copy. Although she was aware that the warrant referred to drugs, she was not specifically told that the police were searching for cannabis. It would appear that she voluntarily gave the police a bong and a small amount of cannabis but an additional 3.5kg of cannabis was found during the search.
[3] The appellant’s challenge to the admissibility of the evidence in the District Court was based on three main heads, namely: that the application for the warrant was made in bad faith; that there was insufficient information to justify issue of a warrant; and that the warrant was insufficiently particular and therefore a nullity. The Judge considered these grounds and determined that the evidence was admissible.
[4] A number of the arguments addressed in the District Court have not been pursued on appeal. The appellant relied in this Court on the argument that Detective Burnett was “less than frank” in the provision of information to the judicial officer in applying for the warrant. In particular, counsel stressed that the Detective failed to advise that the information relied on was by then almost three months old and that the informant had provided incorrect information concerning the address and the colour of the vehicle. The central question is whether the failure to advise the judicial officer of these points, when viewed in the light of what was provided, rendered the search warrant invalid and the subsequent search unreasonable. It was submitted that the actions of Detective Burnett failed to meet the requisite standard of utmost good faith, as all these factors went to the reliability of the informant and the information provided. Counsel contended that the judicial officer was not in possession of all necessary information relevant to the application for a warrant.

Background circumstances

[5] The information which Detective Burnett received from his informant on 23 September 1997 was briefly noted in his notebook as follows:

[information blacked out to protect identity of informant] Craig McColl, Hurleyville.

"Heaps of Dope."

Bung eye 30 yrs.

Drives Subaru 4 x 4 Cream.

Maben Rd, Hurleyville.

The information blacked out referred to a specific drugs transaction. It recorded the name of the person who had purchased the cannabis off Craig McColl of Hurleyville, the price and the amount concerned. The Detective's note also referred to the transaction having taken place three weeks prior to the date on which he received the information. The District Court Judge accepted Detective Burnett's evidence that his informant was considered very reliable. That reliability was based on the informant having given a lot of information about drug activity, drug dealing, and drug growers, which information had proved to be correct and had led to numerous arrests and convictions for a large number of drug offences.

[6] In these circumstances the Detective was entitled to believe information supplied by this informant to be true. The Detective accepted under cross-examination that two points in the information supplied by the informant on this occasion had proved to be incorrect. First, Mr McColl's address was not Maben Road, Hurleyville, but rather Tarere Road, Hurleyville. The two roads are in fact, so Mr Brosnahan informed us, some 20 kilometres apart, Hurleyville being the name of a rural district of some size. The Judge recorded that in fairness to the Detective the overall tenor of his evidence was that his brief note had recorded a quick conversation and that Maben Road was simply a suggested address at which the informant thought Mr McColl lived. The second matter which transpired to be erroneous in what the informant told the Detective, was the colour of the 4x4 Subaru. It turned out to be red, not cream. In the circumstances this point is of no materiality and need not be further addressed.
[7] The Judge noted that all the other details which the informant supplied, including Mr McColl's name, his eye defect, his age, and the general district in which he lived, were correct. The Judge noted, however, that it was unclear how much of this was confirmed by the Detective prior to his application for the warrant. The Judge indicated that the Detective had ascertained Mr McColl's correct address, either by searching the computer, or by visiting his address, or both. The Judge noted that the Detective was not sure which, and was not particularly convincing on this point. The Judge accepted that the Detective had made some form of enquiry to find what he described as an up-to-date address. The Detective actually recorded this as Tahere Road. The correct spelling is Tarere Road. Nothing turns on this minor inaccuracy.
[8] The Judge was clearly and properly unimpressed by the Detective's inability to recall how he ascertained Mr McColl's correct address. The fact that he made further enquiries about the address suggests that he had reason to be unsure about the address supplied by the informant. This supports the view that the informant may well have given the impression that he was unsure whether he had the correct address. The Judge said that it was clear to him that Detective Burnett had a somewhat vague and uncertain recollection of events. His lack of notetaking in respect of important aspects, such as enquiries to substantiate what his informant had told him, was of concern to the Judge and undermined what the Judge described as his trustworthiness. The Judge acquitted the Detective of any dishonesty, saying he was quite sure he tried to tell the truth, but indicated that the Detective had not presented as a reliable or accurate witness.
[9] The Detective applied for the search warrant on 21 November 1997, some two months after receipt of the information from his informant, and nearly three months after the transaction to which the information related. The Detective's affidavit in support of the application for the warrant was in the following terms:

I, Blair Wallace BURNETT, Detective Constable of Hawera, make oath and say as follows:

1. That Police have received reliable and confidential information stating that Craig Edward McColl is currently selling and supplying cannabis from his home address in Hurleyville.

2. That this informant ..... [material blacked out]

3. That this informant has provided a substantial amount of information regarding drugs that has led to a number of arrests and convictions.

4. That this informant is regarded as highly reliable.

5. That Craig McCOLL, although having no previous convictions, lives in a remote part of Hurleyville, working as a farmer and has access to various locations to grow and supply cannabis.

6. That Police strongly believe cannabis will be located at the address occupied by McCOLL.

7. That possession of cannabis and possession of cannabis for supply are offences against the Misuse of Drugs Act 1975, which upon conviction are punishable by a term of imprisonment.

I THEREFORE APPLY for a search warrant to be issued in respect of the said building, carriage, vehicle, box, receptacle, premises or place situated at Tahere Road, Hurleyville, occupied by Craig Edward McCOLL or upon the body of any person or persons therein or thereon.

SWORN AT Hawera on the 21st day of November 1997.

[10] The Judge noted that, as represented above, most of paragraph 2 of the affidavit had been blacked out when presented to him. The Judge arranged to see the original affidavit and having done so he unhesitatingly accepted that paragraph 2 had been rightly blacked out in order to protect the identity of the informant. The Judge described the paragraph as containing compelling evidence as to a specific sale of a specified amount of cannabis for a specified sum. This was of course the transaction which took place three weeks prior to 23 September 1997. The Judge noted that self-evidently the Detective had not disclosed in his affidavit that the information was two months old and the transaction referred to some three months old. Nor did the affidavit disclose that the address at Tahere Road was different from the address provided by the informant, ie. Maben Road. The warrant was issued by a Deputy Registrar on the same day, ie. 21 November 1997 and was also executed that same day. It is the evidence of what was found - a large quantity of cannabis - which was subject to the Judge's admissibility ruling. For the reasons which he gave, the Judge decided that the evidence could properly be admitted.
[11] We turn now to his reasons for coming to that conclusion, confining ourselves to those aspects which were the subject of appeal.

District Court judgment

[12] The Judge accepted the general principle advanced by Mr Brosnahan that the applicant for a search warrant must demonstrate the utmost good faith, in much the same way as good faith is required in the case of ex parte applications generally. The Judge cited Solicitor-General v Schroder (1996) 3 HRNZ 157, where the supporting affidavit was untrue. The affidavit was seen as a deliberate and calculated attempt to mislead or deceive the judicial officer. Eichelbaum CJ, speaking for the Court, observed that "... nothing ... lends credence to the view that the misstatements were the product of recklessness or mere ineptitude." In Schroder's case the Court upheld the first instance decision to reject the evidence on the basis that the police had obtained it as a result of misconduct.
[13] The Judge then cited the decision of Blanchard J in Johnson v Browne (HC, Auckland T123/94, 12 December 1994) to much the same effect, in a case where there was a deliberate omission of any reference to burglary when the purpose of the exercise was to look for specific articles said to have been stolen in a burglary. In order to protect the identity of an informant the police officer had referred in the application to unrelated offences and had made no reference to the burglary, nor to the items they were interested in, in respect of that burglary. The seized evidence relating to the burglary was held to be inadmissible. The Judge also accepted the contention that police officers seeking to obtain search warrants must be open, frank and thorough in their disclosures to the judicial officer concerned. The Judge did not accept that it necessarily followed that "every slip, selective attention to the facts, omission or apparent evasiveness (short of bad faith) will necessarily result in the inadmissibility of any documents seized". The Judge considered that such an absolute proposition appeared to go further than the authorities demonstrated. He concluded that it was a matter of analysing the degree of omission/selective presentation of the facts.
[14] The Judge concluded that the failure to disclose the time lapse, the inaccuracy over the address, and the colour of the vehicle, were not "patent untruths" by omission, deliberately omitted in bad faith to deceive and mislead. The Judge was of the view that the officer was not manipulating the facts to give a more favourable view of them, nor was there any deviousness on his part. In the Judge's view the Detective was relying on a particularly reliable informant and simply did not turn his mind to what the Judge described as the defects now identified by the defence.
[15] Alternatively, the Judge thought that through naivety or ineptitude the Detective did not believe the defects to be significant. The Judge said that in defence of the Detective it had to be noted that very little of the information was "demonstrably incorrect". The Judge emphasised that most of the information had proved to be correct. He also noted that while the information given to the police related to only one transaction, the informant had made reference to "heaps of dope". In the Judge's view such misstatements as there were in the application were due to a lack of detail, and a less than exacting and careful approach to formulating the application. The Judge was of the view that in the interests of completeness the "deficiencies/errors" in the informant's information should have been made clear. He acquitted the Detective of bad faith and was of the view that the problems identified did not detract from the substance of the informant's allegation.
[16] The Judge said that the Detective had included "the crucial information" in his affidavit. That crucial information was that a named individual in a small rural community was selling cannabis, that the informant was aware of an actual sale, the informant was regarded as reliable, and the reasons for that view were included in the affidavit. The Judge expressed his ultimate conclusion in the form of agreeing with the Crown's submission that "at worst there was some ineptitude on the part of the police officer who could have framed the affidavit in more detail". He repeated that there had been no bad faith as in Schroder's case, nor in his view did the lack of detail result in the exclusion of the evidence seized, in the exercise of any discretion the Judge might have had, based on what he described as the overall quality of the conduct of the Detective.

Argument in this Court - law

[17] As the argument developed in this Court it became apparent that one particular aspect was assuming significantly greater importance than was the case in the District Court, as Mr Brosnahan frankly acknowledged. It is a facet of the issue which arises as a result of the time which elapsed from the receipt of the information to the application for the warrant. But before we turn to that and to the other matters of complaint, it is desirable to examine the legal position against which the circumstances of this case must be judged. The best starting point is the decision of this Court in R v Sanders [1994] 3 NZLR 450. The issues which normally arise are the legality of the warrant and the reasonableness of the search. A search conducted under a valid warrant will ordinarily be regarded as reasonable. Conversely a search conducted under an invalid warrant will ordinarily be regarded as unreasonable, although in some circumstances that consequence will not follow; for example if the cause of the invalidity is such that the search can nevertheless be regarded as reasonable in the light of all other relevant circumstances.
[18] It is therefore logical to address first the validity of the warrant. In doing so s204 of the Summary Proceedings Act 1957 must be kept firmly in mind. It provides, inter alia, that no warrant shall be quashed, set aside or held invalid by reason only of any defect, irregularity, omission or want of form unless the Court is satisfied that there has been a miscarriage of justice. In their joint judgment in Sanders Cooke P and Casey J said at 454:

Fisher J has provided a valuable general discussion of ss 198 and 204. We have no doubt that it will be helpful in the resolution of cases arising under those sections. Shortcomings in procedure and documentation are so various, however, that we have reservations as to how far any formula could be evolved that would provide anything in the nature of an automatic analytical answer to issues under the two sections. In the end it is always a question of the relative seriousness or otherwise of an error. If the error is so serious as to attract the description "nullity", s 204 will not assist. Inevitably questions of degree and judgment arise.

[19] With those words in mind we turn to consider the relevant aspects of Fisher J's judgment. He said that an applicant for a search warrant must have a qualifying belief and must articulate the grounds for that belief so that its reasonableness may be gauged by the judicial officer. Fisher J observed that while there is ordinarily no harm in the applicant stating the desired conclusion in the affidavit, the principal purpose of the affidavit is to give evidence of primary facts, not conclusions to be drawn from those facts. It is for the judicial officer alone to decide what conclusions should be drawn from the primary facts to which the applicant has deposed: see Fisher J at 460.
[20] It follows in our view that the applicant should lay before the judicial officer all facts which could reasonably be regarded as relevant to the judicial officer's task. An applicant should not present the judicial officer with a selective or edited version of the facts. There is an obligation on the applicant to be candid and to present the full picture to the judicial officer, not just the conclusion which the judicial officer is asked to draw, supported by so much of the factual background as the applicant chooses to disclose. It is for the judicial officer, on an assessment of all the relevant facts fairly presented, to decide whether the necessary conclusions can be drawn, and thus whether a warrant should issue. Clearly as Cooke P and Casey J emphasised, the consequences of any deficiency will be a matter of degree and judgment in the light of the purpose and terms of s204. Such matters may also arise under s21 of the New Zealand Bill of Rights Act 1990 as discussed in R v Grayson & Taylor [1997] 1 NZLR 399, 408-409 (CA).
[21] On this aspect the judgment of Fisher J in Sanders is of further help. First at 461 he drew a distinction between legal defects and mere defects of expression. If, as he said, the true meaning of the document in question can be ascertained, the focus moves to legal implications with which s204 is primarily concerned. In this context deficiencies in the material supplied in support of the application fall into the category of legal defects rather than matters of expression. If the defect is such as to nullify the application, s204 will not come to the rescue. But if the defect falls short of nullification, the question will be whether there has been a miscarriage of justice: see Fisher J at 462. The onus of proving such a miscarriage rests on the proponent and the standard of proof is the balance of probabilities.
[22] A miscarriage will arise if the defect has caused significant prejudice to the person affected, here Mr McColl. In the context of the present case the issue becomes whether Mr McColl has demonstrated that the defects, which will be discussed below, have caused him significant prejudice. That would be so if we were satisfied, as Mr Brosnahan submitted, that, absent the defects, the judicial officer would probably not have issued the warrant. There would also be a miscarriage of justice if we were satisfied that the defects rendered the application an abuse of process, for no person should be subjected to the intrusion of a search warrant which has been issued in circumstances amounting to an abuse of process. In terms of s204 a warrant issued in such circumstances represents a miscarriage of justice.

Argument in this Court - facts

[23] Mr Brosnahan's argument in this Court focused on para 1 of the Detective's affidavit which it is convenient to repeat.

1. That Police have received reliable and confidential information stating that Craig Edward McColl is currently selling and supplying cannabis from his home address in Hurleyville.

[24] The Detective thereby deposed that he had received information to the effect that Mr McColl was "currently" selling and supplying cannabis. The words "is currently" cannot be correct in relation to information which stated that the transaction in question took place in early September, when the affidavit was sworn on 21 November. Thus from the time point of view the Detective presented a demonstrably misleading picture. He was acquitted of bad faith by the Judge, who nevertheless expressed some anxiety about his accuracy, reliability and trustworthiness.
[25] It is difficult to see how a police officer could say that the information he received was to the effect that Mr McColl was selling and supplying cannabis as at 21 November, when the information was supplied in early September. The best that can be said for this evidence is that it was intended to state a submission rather than a primary fact, the submission being that, because there was information that the suspect made a supply in early September and was then said to have "heaps of dope", it was a reasonable inference that he was still supplying as at 21 November. This is not however what the affidavit conveys on any sensible reading.
[26] Mr Pike's point about growing of cannabis being mentioned in para 5 cannot take matters far. The warrant was not sought in relation to growing, but only in relation to possession and possession for supply. The benevolent view of the evidence suggested above, ie. that it was meant to express a conclusion rather than give the judicial officer the relevant primary facts, shows the problems which can arise when applicants for warrants concentrate more on the conclusion which they wish the judicial officer to draw, rather than the facts which are said to justify the conclusion. The judicial officer should not be regarded as a rubber stamp.
[27] In terms of the Detective's affidavit the judicial officer can only have thought that the information on which the application was based was recent. In the unlikely event the judicial officer thought that the information could be up to three months old, there was then nothing in the affidavit to suggest that the suspect was still dealing in cannabis three months on. Mr Pike suggested that the reference to "heaps of dope" could have led to a reasonable inference that the dealing was still going on. But there was nothing in the affidavit about "heaps of dope". That phrase appeared in the Detective's notebook but not in the affidavit.
[28] Admittedly if all the relevant facts had been placed before the judicial officer, with only such editing as was necessary to protect the identity of the informant, there might have been a reference to the "heaps of dope" comment. In that event there could have been some foundation for an inference of continued dealing, but against that would have been the Detective's inability, or so it seems, to give any, certainly any persuasive evidence about what he had been doing in the two month period between receipt of the information and applying for the warrant. The delay was nowhere satisfactorily explained, whether by reference to further enquiries, pressure of other work, or otherwise.
[29] There is a further unsatisfactory dimension arising out of para 1 of the Detective's affidavit. It is not as obviously misleading as the point we have just discussed, but it is nevertheless of some moment. It concerns the statement that the information received was that Craig McColl was selling cannabis "from his home address in Hurleyville". By putting the matter in that way, the Detective passed over the difference between the address given and the suspect's correct home address. He may have done so on the basis that the difference was immaterial because he had subsequently ascertained the correct address. He did not say this, but in any event the question whether the point was material was for the judicial officer, not for the Detective. Again, it is a situation where the facts should have been accurately portrayed and the judicial officer allowed to come to a conclusion on them. It was material to the judicial officer to know that the wrong address had been given and what steps the Detective had taken to ascertain the correct address.

Conclusions

[30] It is necessary now to relate the foregoing circumstances to the legal principles discussed earlier. We are satisfied that had the affidavit not contained the deficiencies we have identified, the judicial officer probably would, indeed should, either have declined to issue the warrant altogether, or adjourned the application so that further more up-to-date evidence could be obtained to support the contention that the suspect was continuing to deal in cannabis. The information on which the application was based had become too stale at the time it was relied on: compare by analogy s198(3) of the Summary Proceedings Act 1957 which requires a warrant to be executed within 1 month from when it was issued. There was no satisfactory explanation for the delay. This should have been given in the affidavit but it was not even forthcoming in the Detective's evidence before the Judge. Indeed the Detective's inability to account for or explain what had happened in the meantime is surprising.
[31] It is true, as Mr Pike pointed out, that the Detective was not expressly cross-examined on his use of the words "is currently" or about the reasons for the delay. The general tenor of the cross-examination was, however, clearly designed to elicit what further enquiries the Detective had made and what had been happening in the meantime. The concern of the defence about the time dimension was apparent, albeit not so sharply focused as it appears to have become in this Court. On the basis of the views expressed we consider that, for the purposes of s204 of the Summary Proceedings Act 1957, there has been a miscarriage of justice. The warrant should accordingly have been held to be invalid. The evidence was therefore unlawfully obtained.
[32] It is not automatically inadmissible on that account but in this case we consider that it becomes inadmissible on the basis that the search was both unlawful and unreasonable. There is no foundation for any conclusion that in spite of the search being unlawful it was nevertheless not unreasonable. The reasons why the warrant was invalid and the search therefore unlawful, lead clearly to the view that as well as being unlawful the search was also unreasonable. The evidence therefore becomes prima facie inadmissible because it was obtained in breach of s21 of the New Zealand Bill of Rights Act 1990. There is nothing to displace that prima facie position. Hence the evidence should have been ruled inadmissible.
[33] We would reach the same conclusion if the matter is looked at from the point of view of abuse of process. We are unable to accept Mr Pike's submission that because there was no bad faith, there can have been no abuse of process. Obviously bad faith such as was present in Schroder (supra) will be likely to lead to a finding of abuse of process. We cannot, however, see any reason, either in principle or in the case law, to limit the concept of abuse of process for present purposes to deliberate deception: compare the similar jurisdiction to exclude evidence unfairly obtained discussed in R v Tamihere [1991] 1 NZLR 195, 198 per Cooke P. The Court is entitled to consider not only the intent of conduct but also its effect. In this case the Detective's affidavit was misleading and incomplete. It had the effect of concealing the fact that the information was nearly three months old. In short there was both delay and suppression of that fact.
[34] The Detective was found by the Judge not to have acted in bad faith, but the Judge was unimpressed by the Detective's inability to account for what happened after his receipt of the information upon the basis of which he ultimately sought the warrant. In these circumstances we are of the view that the process of the court was materially abused by the lack of candour with which the warrant application was presented. While on the Judge's findings this was not deliberate, the abuse of process remains and is not such as ought to be condoned. We recognise the circumstances which may have been facing the Detective, with other commitments and demands upon him, but certain minimum standards of candour are required, see Schroder (supra) at 161, and R v Williams (1990) 7 CRNZ 378, 383 (CA). The application should not materially mislead nor should it fail to disclose material facts. When defects of this kind are alleged, it will always be a question of degree and judgment whether there has been an abuse of process and thus a miscarriage of justice.
[35] In that respect we are mindful of the balance which must be struck between the two competing public interests referred to in Schroder. The Court must weigh the public interest in bringing offenders to justice against the public interest in the protection of the individual from unlawful or unfair treatment: see R v Dally [1990] 2 NZLR 184, 192 referred to in Schroder at 161. In this case, for whatever reason, the necessary standard of candour was not attained. On this account also we consider the evidence should have been ruled inadmissible.
[36] The circumstances of this case obviously and rightly troubled the Judge in the District Court. He held by a narrow margin that the evidence should be admitted. We have reached the opposite conclusion. Our doing so results from much closer attention being given in this Court to para 1 of the Detective's affidavit and the consequential problems. That arose as much from the perspective of the Court as from counsel's submissions. The Judge below was faced with several quite difficult issues. We have been able to concentrate on one. But for the changed focus of that point, we would have found it difficult to disagree with the Judge's careful and well reasoned decision.
[37] That said, we have no doubt that for the reasons given, the evidence should be ruled inadmissible. We therefore grant leave to appeal and allow the appeal accordingly.

Solicitors
Crown Law Office, Wellington